Jersey Unreported Judgments

Housing - appeal against the Decision of the Chief Minister.

[2020]JRC215

Royal Court

(Samedi)

16 October 2020

Before     :

T. J. Le Cocq, Esq., Bailiff, and Jurats Olsen and Averty

 

Advocate D. C. Robinson for the Appellant.

Advocate S. A. Meiklejohn for the Respondent.

judgment

the bailiff:

1.        By Notice of Appeal dated 30^th April, 2020, ("J") (the Appellant) appealed against a decision (the Decision) of the Chief Minister (the Respondent) against conditions imposed by the Respondent on 10^th March, 2020, (the Conditions) pursuant to Article 41 of the Control of Housing and Work (Jersey) Law 2012 (the Law).

2.        The Appellant is the father of three children AA [Age Redacted], BB [Age Redacted] and CC [Age Redacted].  They are the children of his relationship with K (the Mother) from whom he separated in 2016. 

3.        The Mother was born in Jersey and has Entitled status pursuant to the Law.  AA, BB and CC are also Jersey born. 

4.        The Appellant [Redacted] and went to live in the United Kingdom when he was aged 14.  He came first to Jersey in 2003 and moved to Jersey permanently in February 2017.  He has Registered status under the Law.  He has no formal professional or trade qualifications but has worked in the restaurant trade from time to time. 

5.        AA has been the subject of Care Proceedings in this Court which began in 2018.  He is described as an extremely vulnerable child but amenable to therapy and capable of returning to the Appellant's care following therapy provided his living and family arrangements are stable. 

6.        It was a feature of the Care Proceedings that the Court found that the Appellant needed accommodation that he could not reasonably provide himself and the evidence of AA's Guardian given at the time was that stable accommodation for the Appellant was part of the necessary jigsaw and that without such "irrevocable harm" might be caused to AA.

7.        BB lives with the Mother and CC lives with the Appellant with the support for his living arrangements by the Children's Service as a Child in Need.

8.        By application dated 8^th August, 2019, (the Application) the Appellant requested the Respondent to consider granting him Entitled status under the Law on hardship grounds.  That application was rejected on 20^th December, 2019, on the basis that there were insufficient exceptional circumstances and that other avenues were open to the Appellant that would enable him to maintain life in Jersey and be a parent to and support his children.  In the application, the Appellant made reference to a parenting assessment prepared by Children's Service in July 2019, which is in the following terms:-

"[J] is in a position where he can safely parent his two boys, with appropriate support and intervention.  Part of the required support is financial support and housing.  Should it transpire that [J] is not granted Entitled Status then he and his sons would be forced to move to the UK and would be homeless, or the family will be separated ..."

9.        The Appellant requested a reconsideration of the Respondent's decision and a meeting took place with the Housing and Work Advisory Group (HWAG) on 13 February 2020.  The Children's Commissioner supported the Application by a letter of 23^rd January, 2020. 

10.      Written submissions were provided to HWAG in advance of the meeting including an extract of the Judgment of the Royal Court in the Care Proceedings relating to AA of 10^th January, 2020 In the matter of AA (Care proceedings) [2020] JRC 018 ("the Judgment") and the full Royal Court Judgment in those Care Proceedings dated 29 January 2020, and a transcript of the evidence given in the Care Proceedings by AA's Guardian.  After the meeting with HWAG the Appellant also provided a letter from the Court-appointed Clinical Psychologist to be considered by HWAG.

11.      The Psychologist, in her letter, indicated that AA required "beyond good enough parenting" and that it was essential that he experienced a home environment.

12.      On the 17^th February, 2020, the Appellant's legal advisers wrote to HWAG in the following terms:-

"I think that the restriction usually imposed by the Chief Minister on persons being suitable for Entitled Status on hardship grounds might not necessarily be appropriate to apply in the present case.  The reason for moving from the usual restriction might be justified on the level of support required to sustain his family (the focus being on the children) to keep them adequately housed and cared for in Jersey.  Children who were of course born in Jersey.  There is some merit in avoiding blanket restrictions in cases such as these because a blanket restriction might be seen to detract from the discretionary nature of the decision making process."

13.      Having considered the submissions, the Group subsequently reconvened on 27^th February, 2020, and met with a member of the Law Officer's Department, a Manager from the Child in Need Team 2 of the Children's Services and a Social Worker from Children's Services both to understand the implications of its decision, if any, in relation to the ECHR and UNCRC and also to hear first-hand the ongoing issues facing the Appellant and, more specifically, AA and CC. 

14.      The Group felt that the Appellant had not demonstrated concerted efforts to secure additional employment, or Registered accommodation.  A Registered property had been identified for him in St. Helier but he was reluctant to take it.  It was a 1½ bedroomed property with no parking and the Appellant had asserted that he would be unable to get CC to school without a car and that Children's Services would need to provide further support in his regard. 

15.      Whilst the Group more or less felt that the focus should ultimately be on CC and AA, there was concern that should the Appellant be denied Entitled status, there was a real possibility of him either leaving Jersey, with CC being taken into care as he cannot live with his mother, or leaving Jersey and taking CC with him, in which case the established support structure in place for CC currently would be lost and, in addition, AA's engagement with therapeutic services would be at risk.  It was felt that in either circumstances, both children would be negatively impacted and the Ministers were uncomfortable in maintaining the refusal to grant Entitled status. 

16.      The Appellant's case relates to a great extent on the situation concerning AA and it is relevant to refer to the Judgment in connection with AA's Care Proceedings.  In so far as it is relevant, at Paragraph 49 et seq the Court characterised the position as follows:-

"49 .... The Children's Service appears to have done little or nothing to secure an appropriate placement for [AA].  Further, even after the complex needs of [AA] became clear on receipt of the report of Dr E in March 2019, there was no adequate attempt to identify foster parents with the appropriate skills to provide a therapeutic placement"

..................

52   [AA] struggles with emotional and behavioural regulation.  He had a significant range of unusual behaviours that were suggestive of developmental trauma .....

53   [AA] required "beyond good enough parenting in the immediate time-frame and into the foreseeable future".  He needed to live in a consistent and predictable home environment and his carers needed to be offered training in the dyadic developmental psychotherapy ("DDP") which would support their capacity to work with [AA]". [p.167].

...............

111.   The guardian said that this is now "urgent" that "we get it right" for [AA].  A very significant package of support was needed to allow him to achieve as much as he can.  The package extends to providing stable accommodation for the father, which we will address below. [p178]

129.   The guardian's position was that a care order should be made and that an "urgent solution" must be found to the question of the father's housing and residential qualifications. [p. 186]

140.   So far as the Court and most of the parties were concerned, the only outstanding matter was security of the father's accommodation.

141.   The professional witnesses who gave evidence to the Court were unanimously of the view that stability of AA's parents is a fundamental plank in the therapeutic plan.  A key aspect of that is the father's accommodation.

.....................

143.   In this evidence, the father said to us that he had been required to move accommodation frequently, even in the context of the current accommodation funded by the Children's Service, as he has been required to move from one self-contained unit to another.  He said this had been unhelpful as he found himself living out of bin bags and [CC] had been affected, as he would often lose his toys between moves.  Although supported by the Children's Service with food vouchers and a relatively small weekly sum in cash (most of which goes on petrol) finances for the father are tight.  He said that his commitment as a full-time carer for [CC] make it difficult for him to find full-time employment and at most he is able to work in restaurants over the lunchtime when [CC] is at school.

144.   The father was grateful for the assistance he had had from the Children's Service in all respects, including accommodation.  He was concerned that if he did not obtain residential qualifications then in the very near future he would lose his accommodation and would need to relinquish care of [CC] to the Children's Service.  He said, "I cannot do anything about it.  I cannot provide a house".  It was accepted that the father has worked most of his life and was not work-shy.  The evidence from the social worker was that to take [CC] into care would be more expensive than continuing to fund the father's accommodation for [CC's] benefit.  The father is providing a stable home for [CC's] and for two nights a week a stable and important anchor for [AA]. [pp. 188-190]

.................

152.   The guardian said that she only became aware of the father's housing issue (she is not from the Island) when reunification with the father was planned.  She said that without permanent stable accommodation the plan was not tenable.  She said that she thought it was "an anomaly" that a child might end up having to be looked after because of difficulties with their parent's accommodation.  She said that the father formed a central plank of plans for [AA] future, which has been endorsed by the experts.

153.   The guardian questioned whether it was realistic to expect the father to return to full-time employment.  She said that "sometimes parents have to focus on their children".  She said that the father's stable accommodation was part of the necessary jigsaw in this case ....

154.   She said that the reason given for the father's application for housing qualifications being unsuccessful was that here were other avenues to pursue.  She said those avenues had not been identified by the Assistant Chief Minister who declined the application.  She said that the father's accommodation ought to be part of the care plan and there should be a commitment of resources to ensure that the father could be properly accommodated.  She described [AA] as being "on the cusp of irrevocable harm" and that accommodation and education were essential.

..............

156.   As to the father's return to work, she said that it was not tenable to expect him to work in the evenings (his only real experience is in the restaurant trade).  She asked rhetorically if so much pressure would be placed on a mother to return to work in similar circumstances.

157.   The guardian said, "the families that we work with are outside of normal."  These were unusual circumstances but AA was born in Jersey and should have the opportunity to grow up in the Island with both of his parents.

158.   We entirely agree with the guardian's evidence on this issue, which we invite the Minister to consider with care.  [pp. 190-192]

..............

163.   We confirm our view that this care plan will only succeed if the father and [CC] are provided with secure housing.  We would be most concerned if that were not to be the case. [p. 192]

17.      During the course of the proceedings, the Royal Court heard evidence from AA's guardian.  Part of the evidence is as follows:-

"now without permanent, stable accommodation that plan simply was not tenable and, at the time [J] was making his application, which was first turned down and now has been turned down again on appeal, but without that, without permanent accommodation, the plans of the local authority simply cannot be put into place. [p.151]

[J] has no other means of sorting accommodation himself.  I've heard the arguments, you know, about how hard he has tried to get a job and I've heard it said this week that Children's Services will provide pre-school, after school and school transport.  I question whether or how realistic that is, but sometimes parents need to focus on the children, I think and, from what the experts have said this week, if [J] doesn't have a stable and permanent place to live, then that's a very, it's not a secure foundation from which to try and implement this raft of resources that Children's Services is now putting in place.  It's one part of a very necessary jigsaw if this, if this significant investment is going to have any chance of success. [p.151]

.... For [CC], who is not part of these proceedings and I don't represent him, but the Minister has a significant amount of involvement with him and he is placed with [J].  That placement is sanctioned fully by the Minister and, in all of the senses, his care; his care needs are met by [J] fully.  So, in those circumstances, the Minister shouldn't seek to take a child into care purely for a lack of accommodation.  I'm not trying to suggest that everyone who arrives in Jersey should be provided with accommodation.  No, I'm not, but in these particular circumstances, I think it is hard to reconcile. [p.153]

... what I'm seeking to encourage the Minister to do is to put resources in place (and in that I include accommodation) to give this plan the best possible chance of working because, if [J] doesn't know where he is, where he is going to be, then [AA] won't know where he is and where his father is going to be.  It means that any intervention that is then attempted with this family is done on very shaky ground, and the last thing you need in working with children, it's ineffective unless there are in a stable place ... [pp. 145-155]

I think also though, and again I understand the importance of work, I understand that [J] would like to work, but I also think that we have to acknowledge here that, when you're caring for children who have particular needs - and I think [CC] does have particular needs, he's subject to a child protection plan - then parents have to be cut a bit of slack with that.  The industry that [J] is involved with, by definition, involves evenings and weekends and we've heard from the experts that stability of care is absolutely vital for [AA].  So I think it's just not tenable to expect him to go to work in a restaurant and say "We will give you after school club, we'll get him to school in the morning" because it just means that children are bumped from pillar to post.

I would also say would so much pressure be put on a mother to find work in these circumstances, Sir?  I think we have to, you know, be equal in how we treat parents if they are considered to be able to meet their children's needs.  I think the cost of accommodating these children would far outweigh the price of rent." [p. 156]

18.      Both the Judgment and the evidence set out above formed part of the Appellant's submissions prior to the Decision and therefore the Royal Court's understanding of the position contained in its Judgment was known to the Respondent. 

19.      It is also of significance, so it seems to us, that on 20^th January, 2020, in the context of the proceedings relating to AA a letter jointly signed by the Appellant's legal adviser and the legal representative for the Minister for Children and Housing were sent to the Court.  This letter dealt, amongst other things with the granting of Entitled status on hardship grounds and said that were he to be granted that status:-

"[J] would be able to seek affordable housing through the Affordable Housing Gateway.  Online guidance provides that:-

·              all social housing rents are generally charged at 90% of the market equivalent for each property type; and

·              housing providers rarely have emergency accommodation.  However, an application will be prioritised if the applicant is homeless or is about to become homeless. 

[J] would have no statutory limitation on where he could seek employment as he will be Entitled and employers would not require a licence to employ him."

20.      It is clear that the Respondent (or rather specifically the Deputy Chief Minister who took the decision on behalf of the Respondent) consulted extensively with the Minister for Children and Housing.  The joint letter to which we have made reference in the preceding paragraph appears also to have been written on behalf of the Minister for Children and Housing and it clearly specified that, having been granted Entitled status, the Appellant would be entitled to go into the Affordable Housing Gateway.  It can be seen from the Judgment that the accommodation status of the Appellant was of great significance given the needs of [AA]. 

21.      It would appear that the position of the Minister for Children and Housing, to the extent that it was reflected in the decision of the Deputy Chief Minister/the Respondent was not consistent with the position taken by Counsel on his behalf in the proceedings before the Royal Court relating to [AA].

22.      The Decision was made on 10^th March, 2020.  We are told that the Deputy Chief Minister consulted extensively with the Minister for Children and Housing.  The Respondent agreed to grant the Appellant early Entitled status on Hardship Grounds.  The decision was made subject to five conditions, each of which counts as a decision for the purposes of an appeal.  The conditions are in the following terms:-

(i)        That the Appellant can make no application to go on the Affordable Housing Gateway waiting list to access social rental housing until he has gained Entitled Status in his own right by virtue of 10 years continuous residence in the Island (Condition 1);

(ii)       The Appellant continues to have full-time care of CC and two or more overnight contacts with AA, or such other contact with AA as recommended by the Children's Service (Condition 2);

(iii)      The Appellant engages with Dyadic Developmental Psychotherapy as required by Children's Service (Condition 3);

(iv)      The Appellant uses his best endeavours to ensure that AA engages and completes Dyadic Developmental Psychotherapy (Condition 4);

(v)       That the permission is limited to an initial twelve months, following which it will be reviewed at annual intervals to ensure the conditions attached to it continue to be met (Condition 5).

23.      The Appellant appeals against all five conditions.

The Grounds of Appeal

Condition 1

24.      The Appellant states that by imposing Condition 1 the Respondent failed to consider or consider sufficiently that the Appellant needs accommodation for the family which he could not provide himself.  Further, the Respondent has failed to consider that it is not tenable for the Appellant to work and provide the appropriate level of care that his children require. 

25.      It is asserted that by excluding the Appellant from the Affordable Housing Gateway, the Respondent has in effect excluded him from accessing social rental accommodation and there is no reasonable justification for this.

26.      Condition 1, so it is stated, is a blanket condition imposed by the Respondent in every case when he advanced early Entitled Status on hardship grounds and because it is imposed as part of a blanket condition the Respondent's own discretion has been fettered and it cannot therefore be reasonable because the Respondent cannot take into account and weigh up significant factors. 

Condition 2

27.      With regard to Condition 2, the Appellant argues that the Respondent has failed to consider or sufficiently to consider the implications for the Appellant and CC should the Children's Service decide there should be no contact between the Appellant and AA.  The Respondent has failed, so it is asserted, to consider CC's needs separately from AA's needs and the Care Plan. 

28.      By linking CC's housing requirements to the success of AA's Care Plan the Respondent has taken into consideration factors which he ought not to have taken into consideration and the Respondent has failed to consider or sufficiently to consider the implications for the Appellant and AA should the Appellant become unable to maintain full-time care for CC.  In other words, the Respondent has failed to consider AA's needs separately from those of CC. 

Condition 3

29.      It is asserted that Condition 3 is unreasonable because there is no connection between the Appellant's requirement for early Entitled Status and the obligation to fulfil the terms set out in Condition 3.  Alternatively, it is unreasonable because it does not take into account reasonable circumstances that might prevent the Appellant fulfilling those terms. 

Condition 4

30.      It is asserted that Condition 4 is unreasonable again because there is no connection between the Appellant's requirement for early Entitled Status and his efforts necessarily to fulfil the terms set out in Condition 4.  Alternatively, it is asserted that Condition 4 is unreasonable because it places an obligation on the Appellant to use all efforts necessary to fulfil the terms some of which are beyond his means.

Condition 5

31.      It is asserted that Condition 5 is unreasonable because in imposing it the Respondent has failed to consider or sufficiently to consider the Appellant's requirement for stable accommodation and AA's requirement for secure accommodation.  Limiting the time of the condition for twelve months undermines the stability and security required. 

The Law

32.      Article 2 of the Law provides:-

"(1)     a person's residential and employment status shall be any of the following:-

(a)        Entitled;

(b)        Licensed

(c)        Entitled to Work Only

(d)        Registered

If the person satisfies the conditions for that status specified by the States and Regulations.

(2)       In making Regulations under paragraph (1), the States may;

(a)        specify circumstances in which a person will lose particular residential and employment status; and

(b)        make provision for the residential and employment status of any particular person to be subject to such conditions as may be determined by the Minister, including, without prejudice to the generality before going, conditions relating to the occupancy of a specific dwelling unit."

33.      Under Regulation 2 (Conditions for Entitled status and loss of status) in the Control of Housing and Work (Residential and Employment Status) (Jersey) Regulations 2013, Paragraph (1) provides

"(1)     A person who satisfies any of the conditions set out in sub-paragraphs (a) to (f) of this paragraph shall have Entitled status-

.........

(f)        the person-

(i)         has been granted Entitled status by the Minister on the ground that the Minister is satisfied that the hardship (other than solely financial hardship) which would be caused to the person or to any individual ordinarily resident in Jersey if the person were not granted Entitled status outweighs the fact that the person does not meet any other condition in this paragraph, and

(ii)        the person satisfies any condition to which the grant of such status is subject under paragraph (2A).[3]

.................

(2A)    The Minister may grant Entitled status under paragraph (1)(f) subject to such conditions as the Minister thinks fit.[5]

(2B)     Without prejudice to the generality of conditions which may be imposed under paragraph (2) or (2A), conditions may include limiting the period for which consent is granted or specifying the unit of dwelling accommodation occupied or to be occupied.[6]

(3A)    Any condition subject to which a person is granted Entitled status under paragraph (2A) may be amended on such terms as the person and the Minister may agree.[8]

..................."

34.      In Karolina Klonowska v The Chief Minister [2016] JRC 127,  the Court at paragraph 18 said this:-

18.      The test to be applied in considering an appeal under the 2012 Law has not yet been considered by the Court, but as Advocate White submitted, the right to appeal is granted in similar terms to Article 109(1) of the Planning and Building (Jersey) Law 2002 upon which there is a very considerable body of case law guidance.  In Dixon and Another v Minister for Planning and Environment [2012] JRC 237A the Court said:-

"As noted in the Fairview Farm case, the Royal Court cannot escape the responsibility of forming its own view.  This is because the Court is reviewing whether the decision of the Minister was unreasonable and in order to conduct that review, it must naturally look at what the Minister should and should not have taken into account in terms of relevant policies and objections.  When conducting that exercise, the Court is likely to form a view in any event on the merits of the application, but it needs to do that so as to be able to weigh up the relative significance of the various factors and thus form a view as to whether the decision of the Minister was or was not reasonable.  The appeal is not a full merits appeal because the Court was to allow, as Bailhache, Bailiff, put it in Token a margin of appreciation to the Committee now the Minister.  Nonetheless, given the absence of any other form of appeal against the Minister's decision, the Court should not be too unwilling to intervene where that is appropriate.  This is not an appeal based on Wednesbury unreasonableness, where the application has to show the administrative decision was so unreasonable, no reasonable person could have taken it, such as where the stairs constructed by the decision-taken do not reach the attic bedrooms.

In the second stage of the appeal, considering the decision of the Minister, the Court has regard to whether the process was lawful and fair (see for example Caesar Investments Limited v Planning and Environment Committee [2003] JLR 566 and Ruette Pinel Farm Limited v Minister for Planning and Environment [2012] JRC 008) and then the reasonableness of the Minister's decision.  Comparing that decision with the Court's evaluation will:-

(a)       Sometimes lead to a conclusion that the Minister has acted unreasonably;

(b)       Sometimes show that the Minister has reached a different view from the Court but a view which is nonetheless reasonable;

(c)       Sometimes show that the Court's view and the Minister's view are the same."

35.      In Osment v The Chief Minister [2020] JRC 008 the Court, at paragraph 8 of the Judgment said:-

"There is a right of appeal under Article 41 of the 2012 Law on the ground that the decision "is unreasonable having regard to all the circumstances of the case".  This test was considered by the Court in Klonowska v The Chief Minister [2016] JRC 127 at paragraphs 18-20, where the Court noted that this right of appeal is in similar terms to the previously enacted article 109(1) of the Planning and Building (Jersey) Law 2002, on which there is a very considerable body of case law for guidance.  It quoted from Dixon and Another v Minister for Planning and Environment [2012] JRC 237A and The Minister for Planning and Environment v Hobson [2014] JCA 148, but by way of summary:-

(i)        This is not an appeal based on Wednesbury unreasonableness, where the applicant has to show the administrative decision was so unreasonable, no reasonable person could have taken it. At the same time it is not a full merits appeal, because the Court has to allow a margin of appreciation to the Minister.

(ii)       The Court must consider the decision of the Minister and form a view as to whether the decision was reasonable, and in conducting that exercise, must naturally look at what the Minister should and should not have taken into account and weigh up the relevant significance of the various factors.

(iii)      It is not sufficient for the Court to reach a different view from that of the Minister.  It must also have found the decision to be beyond the bounds of reasonable justification, perhaps because, in the mind of the Court, the decision is the result of flawed logic or is supported only by somewhat threadbare reasoning."

36.      It appears that the conditions had not been considered by HWAG at the meetings on either 13^th February or 27^th February, 2020.  The conditions were imposed by the Deputy Chief Minister on 5^th March, 2020.  In an affidavit sworn by Mrs Tina Worboys dated 2^nd July, 2020, (the Worboys Affidavit) there is a general statement that the conditions had been discussed by the Deputy Chief Minister with his Ministerial colleagues and others, but there does not appear to be any reference to when those discussions took place and what material was considered or indeed the rationale for imposing the conditions.  There does not appear to be reference in Ms Worboy's affidavit nor indeed in other places to the fact that the Respondent considered the comments in the Judgment or otherwise made by the Royal Court set out above.

37.      Our attention has been drawn to the guidance dated May 2016 which says at paragraph 92, that:-

"conditions may be attached to Entitled status on hardship grounds and a person may lose that status if they failed to meet those conditions.  Entitled status on hardship grounds is not in itself permanent and policies in respect of temporary absence apply as they would to other persons of entitled status. 

Thereafter, in paragraphs 94 - 96 the following appears:-

94.  Furthermore, a determination of whether Entitled status should be provided on hardship grounds takes into account the following factor:-

(a)       The level of hardship that would be caused.  The lower the likelihood of hardship, the less likely it is that Entitled status would be granted.

(b)       the length of ordinary residence.  The closer a person is to meeting the criterion of 10 years of ordinary residence, the more likely it is that a request on hardship grounds would be considered favourably.  Unless exceptional circumstances apply, applications with less than 8 years of ordinary residence are unlikely to be granted.  This does not mean, however, that ordinary residence of more than 8 years will guarantee provision of Entitled status as it will depend upon the circumstances of the case in question.

(c)       the person's potential situation in relation to those in similar circumstances.  In other words, the potential hardship in housing and employment terms that would be caused in comparison with the experience of residents in similar circumstances; and whether the granting of Entitled status would likely to create an obligation to do likewise with others in similar or worse circumstances.

(d)       Whether it is vital that Entitled status be granted in order for the hardship to be avoided or whether there would be other means available to the applicant to avoid that hardship.

In order for Entitled status to be granted, it ultimately needs to be decided that the hardship which would be caused is the overriding factor; that it is so overwhelming that it should be given greater priority than the applicant's failure to meet the standard eligibility criteria.

95.      The legislation specifies that the hardship which would be caused by not granting Entitled status cannot simply be financial hardship.  According to the dictionary, hardship means severe suffering or privation; harsh, adverse or harassing circumstances, or a difficulty in respect of one's ability to live comfortably. The potential for hardship must therefore be seen on other grounds, such as medical hardship, emotional or social hardship, or hardship in respect of living arrangements.

96.      The hardship does not need to be caused to the person seeking Entitled status, it may be hardship that would be caused to another person who is ordinarily resident in the Island (e.g. the person's child)."

38.      It appears at first reading that the guidance itself is of little relevance in determining what considerations should be taken into account imposing conditions on granting Entitled status.  The guidance appears to relate to whether or not Entitled status should be granted but not to what conditions should be imposed. 

39.      With regard to Condition 1, which prevents the Appellant from making an application to go into the Affordable Housing Gateway, the Appellant argues that it is difficult to see that such a condition is consistent with the Respondent having considered the Judgment of the Court and the other materials put before him. 

40.      It is argued that in imposing Condition 1, the Respondent appears to have accepted the view of the Children's Service that the Appellant could reside in a 1½ bedroomed property.  It is difficult, so the Appellant says, to understand the imposition of such a condition in the light of his particular family circumstances. 

41.      It is perhaps helpful at this point to add a further excerpt from the judgment, the Court, which in considering a series of incidents between February and March 2017, said this:-

"20.  Collectively these incidents of poor parenting led to a series of incidents in February and March 2017 in which AA exhibited extremely worrying behaviour:

[Details of assaults on mother, sister and brother redacted]

42.      This of course paints a worrying picture of AA's attitude towards CC to which we will make reference hereunder.

43.      It is further asserted by the Appellant that Condition 1, is a blanket condition that is imposed in all cases where Entitled status is passed on the grounds of hardship.  The Respondent however, argues that whereas such condition is often imposed, it is not always the case that Condition 1 is included in a grant on the basis of Entitled status.  The Respondent argues that such a condition is proportionate and the aim of preserving accommodation in the Island for those with a close connection with Jersey is a legitimate one. 

44.      We agree in principle with the latter submission but of course, it does not by itself justify the imposition of Condition 1.  All of the relevant factors would need to be taken into account to determine whether Condition 1 or indeed any of the other conditions, were justified in the circumstances.

45.      With regard to Condition 2, the Appellant argues that the consequence of that condition is that if for some reason CC is not in his full time care or he does not have two or more overnight contacts with AA (say as agreed by Children's Services) then he will lose his Entitled status.  This, so the Appellant argues simply does not foster or promote a stable and secure environment, which is an essential element for the Appellant's children. 

46.      The Respondent argues that the purpose of the decision was to safeguard AA and CC's future and that the purpose of Condition 2 was to foster that. 

47.      The Appellant argues, however, that the imposition of that condition fails to address the needs of AA and CC separately.  It could be the case that AA needs to be looked after by the Appellant or CC does and the two should not be linked so that the Appellant has to provide for the needs of both children jointly.

48.      With regard to Condition 3, it is pointed out that the Appellant currently engages with Dyadic Developmental Psychotherapy as required by Children's Service on a voluntary basis.  It is further argued that there is simply no link between the Appellant's need for Entitled status and it imposes on the Appellant the obligation to engage in that form of psychotherapy.

49.      A similar argument is raised in connection with Condition 4, and again it is argued by the Appellant that neither of those conditions lead to the security of the Appellant's accommodation nor, for AA, the "consistent and predictable home environment" that he requires.  The Respondent argues that both of these conditions are inherently reasonable and are linked to the wellbeing of AA.  The Respondent refers to a letter from Dr E to HAWG in which he confirmed that:

"I believe that [AA] despite his young age has an already small window of opportunity for genuine positive change in healing.  The absence of [J] as an active and available participant in the process would almost inevitably further narrow this window and significantly reduce [AA]'s chances of a positive outcome"

50.      With regard to Condition 5, the Appellant argues that it is unreasonable because the Respondent must have failed to consider the Appellant's requirement for stable accommodation and AA's similar requirement.  The Respondent argues that it is not a novel condition and that it is not intended to merely limit the status for a period of 12 months.  It is clear that the Entitled status is granted for an initial period of 12 months and it is intended merely to provide for an annual review of the conditions.

51.      We accept this latter submission.

Decision

52.      It is to our mind clear that the Appellant's application for Entitled status on hardship grounds was linked completely to his need to provide secure and satisfactory accommodation for his children.  In our judgment he was granted Entitled status for those purposes and any condition imposed on the permission must be relevant to fostering that purpose and not to negating in whole or in part the benefit of Entitled status in that regard.

53.      Although it is often imposed, Condition 1 seems to us to be strange in the context of the particular circumstances of this case.  The Judgment, the comments of the Guardian, and other aspects of the court case dealing with AA were before the Respondent.  It is difficult to see that a condition removing from the Appellant the ability to access the Affordable Housing Gateway is consistent with the fundamental purpose for which the condition was granted.

54.      The facts in this case, if not unique, are sufficiently exceptional to show that the Appellant has an extraordinary need for particular types of accommodation if those are available.  To limit his ability to secure that accommodation was wholly inconsistent with the granting of Entitled status in this case.

55.      We do not make any observations about the Appellant's access to accommodation even if he does access the Affordable Housing Gateway, nor how, should he access that Gateway, the matter be administered.  The imposition of a condition, however, effectively preventing that access seems to us to be inherently unreasonable and at odds with the underlying purpose for which the Entitled status was granted. 

56.      We are reinforced in our view by the terms of the joint letter quoted above and it seems to us that the Minister for Children and Housing fully appreciated that the Appellant should have access to the Affordable Housing Gateway even if that appreciation did not translate to information made available to the Deputy Chief Minister in this case.

57.      Accordingly, we allow the appeal with regard to Condition1.  

58.      With regard to Condition 2, in our judgment the condition is unfortunately worded.  In our view, the condition should be not linked in any way to the Appellant's care of or providing accommodation for both of the children in question.

59.      In our view, Condition 2 would be better worded in the following way:-

"the Appellant continues to be the primary carer of [CC] and/or have overnight contact with [AA] should such be recommended by the Children's Service.

In the event that the Appellant ceases to be the primary carer of [CC] and ceases to have any overnight contact with [AA] for a period of six months then it shall be open to the Minister to review the Appellant's status."

60.      It seems to us that the imposition of such a condition in these or similar terms would reflect the reality of the situation, namely that the grant of Entitled status is entirely linked to the Appellant's needs to provide for his children but also provides a measure of flexibility and it makes it clear that the needs of the children are to be considered severally and not necessarily jointly.

61.      Accordingly, we strike down Condition 2 and substitute a condition in the above terms.  However, we give liberty to the parties to agree the precise terms of such a condition or to revert to the Court for determination. 

62.      We see nothing difficult or offensive in conditions 3 and 4.  With regard to Condition 3, we are informed that the Appellant is doing this voluntarily and it does not strike us as either unreasonable or indeed other than proportionate to require the Appellant to continue, to the extent that he is asked to do so by the professionals in the case, to participate in the therapeutic programme for his children.  As we have indicated we accept the Respondent's statement with regard to the ambit of Condition 4, namely that the Appellant only needs to use his best endeavours and again, we find nothing unreasonable in the imposition of those conditions.   

63.      With regard to Condition 5, it seems to us entirely reasonable that there should be a review built in to the process.  It should be understood that the Appellant has received Entitled status to meet a particular form of hardship, which is tied to the exceptional needs of his children.  It is not unreasonable to ensure that those conditions are upheld by an annual review.  The conditions are not, so it seems to us, onerous and therefore the Appellant should have no difficulty in complying with them.  In any event, however, we do not consider Condition 5 to be unreasonable. 

64.      In summary, therefore, we strike down Condition 1, amend Condition 2, and maintain Conditions 3 to 5 inclusive. 

Authorities

Control of Housing and Work (Jersey) Law 2012.

Control of Housing and Work (Residential and Employment Status) (Jersey) Regulations 2013

Karolina Klonowska v The Chief Minister [2016] JRC 127

Osment v The Chief Minister [2020] JRC 008